“There are a good number of books on the subject, but none provide the scope that this one does. . . . I can surely see this becoming the standard book to which people turn when wanting to know the story of Indian claims.”—Christian McMillen, author of Making Indian Law: The Hualapai Land Case and the Birth of Ethnohistory
Hollow Justice: A History of Indigenous Claims in the United Statesby David E. Wilkins
This book, the first of its kind, comprehensively explores Native American claims against the United States government over the past two centuries. Despite the federal government’s multiple attempts to redress indigenous claims, a close examination reveals that even when compensatory programs were instituted, Native peoples never attained a genuine sense of
This book, the first of its kind, comprehensively explores Native American claims against the United States government over the past two centuries. Despite the federal government’s multiple attempts to redress indigenous claims, a close examination reveals that even when compensatory programs were instituted, Native peoples never attained a genuine sense of justice. David E. Wilkins addresses the important question of what one nation owes another when the balance of rights, resources, and responsibilities have been negotiated through treaties. How does the United States assure that guarantees made to tribal nations, whether through a century old treaty or a modern day compact, remain viable and lasting?
“A highly readable and important study on the history of Native claims against the United States. . . . To my knowledge, this is the first sustained scholarly effort to link the acts of promise making and the consequences of promise-breaking between the US and the tribal nations with a close examination of the various institutional mechanisms developed over time to resolve those claims.“—N. Bruce Duthu, author of American Indians and the Law
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A History of Indigenous Claims in the United States
By DAVID E. WILKINS
Yale UNIVERSITY PRESSCopyright © 2013 Yale University
All rights reserved.
NATIVE NATIONS AND THE COURT OF CLAIMS
A Study in Frustration and Despair
IN THE BEGINNING the land now known as North America belonged to the indigenous peoples. Indeed, the lyrics of folksinger Woody Guthrie defined the boundaries well: from California to the New York Island; from the redwood forests to the Gulf Stream waters. Native peoples indisputably were the possessors and owners of all this rich territory. Unfortunately, the title of Guthrie's folksong, "This Land Is Your Land," does not quite hit the mark. From a Native perspective, the title should have been "This Land Was Our Land." Whereas once the entire North American landmass belonged to Native nations, by 1900 they had cumulatively lost title and control to more than 2 billion acres, with most of the loss occurring between the 1850s and 1900. The United States had purchased about half that amount via treaties or agreements, while another 32.5 million acres, according to Russel Barsh, had been "confiscated unilaterally by Act of Congress or executive order without compensation." Finally, another 725 million acres in the lower forty-eight states and Alaska were taken by the federal government "without agreement or the pretense of a unilateral action extinguishing native title." In fact, by 1934 Native holdings had dwindled even further, to a meager 47 million acres. The non-Indian's quest for land was being satisfied but at the expense of indigenous peoples.
How did this come about? Contrary to popular belief, the land was not simply stolen and confiscated by non-Indians, though such theft did sometimes occur. Instead, the federal government's dispossession of Native territory was done largely via several hundred negotiated treaties and agreements. But as Nell Jessup Newton points out, although some of the early treaties were mutually beneficial, many others "were procured by fraud or simply by the threat of force so great that tribes had no choice but to cede more land, further blurring the line between consent and coercion in American Indian policy." The vaunted legal realist Felix Cohen went so far as to remark that "the purchase of the land of the United States from the Indian was, I suppose, the largest real estate deal recorded in the history of the world." While U.S presidents appointed treaty commissioners and the Congress ratified the treaties and provided the funding for fulfilling treaty commitments, the courts also played an important role in this legitimizing process. In an early nineteenth-century Supreme Court decision, Johnson v. McIntosh, Chief Justice John Marshall concluded that conquest elevated whites and the federal government to a superior territorial position vis-à-vis land title in the U.S. Although the U.S. claimed a superior land title, it was subject to the continued right of Native use and occupancy. Indigenous interest in their lands had not been completely extinguished, but it was altered significantly in that the federal government, under the problematic doctrine of discovery, claimed a superior title to the soil. Native peoples were effectively thrust into a landlord-tenant relationship with the tenancy lasting only so long as the federal government allowed.
Although having been reduced to a position of territorial subordinance, Native nations did not lose their political independence or sovereignty. In the so-called Cherokee Nation cases—Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832)—Chief Justice Marshall, in establishing a foundation for the negotiated acquisition of Native land, acknowledged that indigenous peoples possessed a fund of sovereignty that permitted the federal government to deal with them as recognized legal entities. He coined the awkward and novel phrase "domestic dependent nations" to describe Native peoples in the first case, but in the second ruling he more accurately referred to them as "distinct and independent political communities" possessing their own institutions and capable of self-government.
While refusing to recognize Native nations as being on an equal sovereign footing with the United States, Marshall made sure that he recognized them as having sufficient sovereignty so that the government could legally and politically bargain with them. At the same time, however, the Chief Justice sought to enshrine federal superiority over the rest of their affairs. This was really nothing more than a continuation of the policy the United States had embarked upon in 1778 when it entered into its first formal treaty with the Delaware Indians. Treaty making thus became the device for defining the political and legal relationships between Native nations and the federal and state governments. In fact, it became the primary legal mechanism by which the federal government dispossessed natives of most of their land holdings.
In its early treaties with Native nations, the federal government was interested in achieving two basic goals. First, it needed to establish peace with the Native peoples; second, and of equal importance, it desired to obtain additional land so as to satisfy the ever-increasing demands of white settlers, corporate interests, state and territorial governments, and many federal policymakers. Thus, immediately following the adoption of the U.S. Constitution in 1789, Congress began to exercise its power in Indian affairs by enacting the Trade and Intercourse Act of 1790. This act vested in the federal government the right of preemption—that is, the power to deny others, notably the states and white settlers, the right to directly acquire Native land. More specifically, the act stipulated that Indian lands could not be sold or disposed of except through a treaty negotiated between the federal government and a Native nation. This was but the first of a series of several similar acts that extended federal control over the field of aboriginal affairs.
One of the major objectives of this legislation was to protect Native peoples from unscrupulous white traders and entrepreneurs seeking to obtain land from the Indians, often under conditions of duress, fraud, or outright theft. But more important, it provided the federal government with a monopoly. There could be no Native land transactions without first securing the express approval of federal officials: federal preemption in regards to aboriginal land sales became "an enduring feature of federal Indian policy reenacted in a series of subsequent statutes. It is still in force today."
But even as the national government sought to fulfill its role as the alleged guardian of Native lands, federal policies facilitated an ever-increasing erosion of Indian territory. Hundreds of treaties were negotiated with Native nations, and in many of these accords tribal land holdings dwindled further; the dispossession of indigenous peoples was carried out under the color of law. Stuart Banner points out that the manner in which natives surrendered the vast majority of their territory can be placed on a spectrum bounded by poles of conquest and control. As he notes, "At most times, and in most places, the Indians were not exactly conquered, but they did not exactly choose to sell their land either. The truth was somewhere in the middle." Every land deal, he continued, involved elements of power and law. And as whites became more powerful in comparison to natives, the "more they were able to mold the legal system to produce outcomes in their favor—more sales, of larger tracts, at lower prices than would have existed had power relationships been more equal."
In most cases the U.S. president's treaty commissioners would negotiate the treaty accords, the Senate would be called upon to ratify the arrangement, and aboriginal land, sometimes in small tracts but sometimes in great swaths, slowly but inexorably left indigenous control and came to be owned by non-Indians. The federal courts, not surprisingly, provided Native nations with little protection in these land transactions. They generally deferred to the wishes of Congress and the president, and they crafted a number of legal rationales, such as the doctrines of discovery and conquest, the doctrine of congressional plenary power, and the notion of wardship, to justify federal superiority in relation to tribal nations.
Initially, Native peoples may not have fully comprehended the profundity of the territorial or cultural threat posed by non-Indians. Furthermore, tribal nations generally believed that their lands would never be taken from them without their express consent—as laid out in numerous treaties and congressional policies like the Northwest Ordinance of 1787—and there is substantial political and legal discourse that substantiates this understanding. Thomas Jefferson, for instance, when he was president reasoned that the federal government had a right to preemptively claim aboriginal land only if natives wanted to sell the same.
Despite the policy and legal protections put in place to protect aboriginal landholdings, within the span of three hundred years, through treaties, congressional acts, and policy directives, title to nearly the entire North American continent was transferred from Native nations to the federal government. This has been referred to by the Indian Claims Commission (ICC) as "the largest real estate transaction in history." For many Native peoples, however, these were not "real estate transactions" so much as they were the establishment of shared and reciprocal relations on lands that no human being or nation truly owned and therefore had no right to sell. During these early years of negotiation and exploitation, Native nations were faced with a number of difficulties. In many instances, few Indians spoke English and fewer still understood the political and economic systems employed by white traders. As a result, Native Americans frequently received an astonishingly low price for their lands. As Harvey Rosenthal noted in his study of the ICC, "Despoliation of the land and its former possessors was inherent in this mad, largely undisciplined, rush to the Pacific. The U.S. acquired about 443 million acres from 1789 to 1840 for some 31.3 million in cash and 53.8 million acres for Indian settlement further west. This cost to the government of about ten cents per acre compared favorably to the value of 1.25 per acre that was the minimum purchase price for lands of the public domain."
It was not too difficult to defraud or use duress to overcome the reluctance of Native leaders who initially may not have wanted to sell. As Banner noted in his study, "The best that can be said is that many of the purchases were made deceitfully." Margaret Hunter Pierce, a former member of the Indian Claims Commission, noted that natives were frequently compensated by amounts that were ridiculously low. The "disparity between the price paid and the value of the land was so great as to shock almost anyone's conscience." Robert W. Barker, an attorney who represented a number of tribal nations, noted that the federal government was never hesitant to persuade Indians to cede their lands for "only token consideration."
Exploitation of Indians constituted a major problem in these historic land transactions, but perhaps a more serious concern for Native peoples involved the failure of the government to consistently fulfill its treaty obligations. "Treaties guaranteeing tracts of land 'in perpetuity' to displaced Indian groups were broken as soon as the government discovered some need for the awarded area," wrote Sandra Danforth. "Other treaty provisions for food, medicine, tools, annuities, and other supplies to assist destitute and disintegrated Indian societies to rebuild were ignored as often as not."
As described by Vine Deloria, Jr., in Behind the Trail of Broken Treaties, "The ink was hardly dry on the treaties before white settlers began their trek overland into Indian country, breaching the solemn promises of the United States." And as Banner put it, "In the end, the acquisition of land in North America is a story of power, of the displacement of the weak by the strong; but it was a more subtle and complex kind of power than would have been necessary to seize land by force. It was the power to supplant Indian legal systems with the English [and later the U.S.] legal system, the power to have land disputes decided by English officials using English law rather than Indian officials using Indian law."
When the natives turned to the government for protection, too frequently the federal government refused to use the army against the settlers. In far too many instances the U.S. simply opted not to fulfill its legal and moral commitments to Native peoples. Occasionally tribal nations, or their non-Indian allies, turned to the federal courts in an attempt to force the national government to honor its treaty obligations. In a few instances, such as Worcester v. Georgia (1832), the Indians legally prevailed. In this case the High Court concluded that the U.S. had a legal obligation both to recognize and to enforce treaty covenants. This decision, unfortunately, proved to be a hollow victory for the Cherokee nation as the Cherokee and thousands of other tribal citizens were ultimately forcibly evicted from the Southeast and relocated to what would become Oklahoma.
As the first half of the nineteenth century came to a close, the situation confronting Native peoples was bleak. Most of their land had been stolen, swindled, or negotiated away, and there appeared to be little relief on the horizon. But then federal lawmakers, in a fleeting moment of wisdom, created the U.S. Court of Claims and this, at first glance, appeared to provide Native nations with a potential promise of hope.
The Court of Claims
Some truths are self-evident. For instance, if someone steals your property, or defrauds you of your land, or contracts to buy goods but ultimately fails to pay you, you can go to a court of law and sue for damages. But what if the culprit happens to be a government? Does one still have the right to remedy by going to a court of law and suing? The answer is usually no. Under the doctrine of sovereign immunity, a person does not have the right to sue the government unless the government expressly consents to being sued. This protective shield that governments have cloaked their institutional arrangements in is as old as the law itself. And the United States, like individual states and Native nations as well, as sovereign powers, are no exception to this rule. The doctrine of sovereign immunity is indelibly lodged in the American system of law.
Governments, of course, are not always the villains that individuals, interest groups, and corporations make them out to be. They have the capacity, when properly led and inspired by clear goals and with sufficient revenue, to rise to the occasion and address burdensome issues. An opportunity for just such an action arose in 1855 for the United States. For years the only way that an injured party could bring a suit for damages against the federal government had been to petition Congress for relief. This put an inordinately large burden on the legislative branch. The volume of private bills introduced seeking redress was exceptionally heavy. Inequities abounded in that the political clout possessed by some claimants resulted in their succeeding while the complaints of many others were not addressed. From the standpoint of the lawmakers, too much of their time and energy was consumed in dealing with these "peripheral" private problems.
In an attempt to rectify this administrative morass, Congress in 1855 moved to create the U.S. Court of Claims. This remedial piece of legislation established a federal court composed of three judges. The court sat in Washington, D.C., yet its jurisdiction extended to claims arising throughout the nation. Initially the powers of the court were somewhat limited. The 1855 act empowered the court only to hear claims based on statutes, federal regulations, or contracts and then forward its findings to Congress, along with the draft of a private bill for its consideration. Congress, not the Court of Claims, ultimately decided whether a claim would be satisfied.
Excerpted from Hollow Justice by DAVID E. WILKINS. Copyright © 2013 Yale University. Excerpted by permission of Yale UNIVERSITY PRESS.
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Meet the Author
David E. Wilkins holds the McKnight Presidential Professorship in American Indian Studies at the University of Minnesota, where he is also adjunct professor of political science, law, and American studies. He lives in Minneapolis, MN.
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